Opinion analysis: An emerging divide over text vs. context in interpreting federal immigration law?
on May 19, 2016 at 9:52 pm
Congress has defined the term “aggravated felony” to include state and foreign crimes that are “described in” certain federal statutes, such as the arson offense codified at 18 U.S.C. § 844(i), which makes it a federal crime to “maliciously damage or destroy, or attempt to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” In a five-to-three ruling handed down on Thursday, the Supreme Court held that, even though most state and foreign crimes lack such an “interstate or foreign commerce” element, they are nevertheless “described in” the relevant federal statute so long as all of the elements of the federal statute that are not “jurisdictional” are part of the state or foreign conviction. In the process, the Court in Luna Torres v. Lynch not only threaded a statutory interpretation needle without expressly relying upon any canons of statutory interpretation, but may have also further highlighted an emerging divide among the Justices over how to resolve the many interpretive dilemmas posed by federal immigration law.
Writing for a majority that included Justices Anthony Kennedy, Ruth Bader Ginsburg, and Samuel Alito, Justice Elena Kagan reached this result through two interrelated conclusions: First, she explained, the meaning of the relevant statutory text – “described in” – cannot be resolved in the abstract, since, “[l]ike many words, ‘describe’ takes on different meanings in different contexts.” Because of the different meanings, Kagan concluded, “staring at, or even looking up, the words ‘described in’ cannot answer whether a state offense must replicate every last element of a listed federal statute, including its jurisdictional one, to qualify as an aggravated felony.”
Second, given that the dispute could not be resolved on the basis of text alone, the majority turned to contextual considerations, and identified two that “decide the matter”: the penultimate sentence of the definition of aggravated felony, “which shows that Congress meant the term ‘aggravated felony’ to capture serious crimes regardless of whether they are prohibited by federal, state, or foreign law,” and “a well-established background principle distinguishing between substantive and jurisdictional elements in federal criminal statutes.”
In a lengthy dissent on behalf of herself and Justices Clarence Thomas and Stephen Breyer, Justice Sonia Sotomayor took issue with each step of the majority’s analysis. Starting with the observation that, “[u]ntil today, the Court has always required the state offense to match every element of the listed ‘aggravated felony,’” Sotomayor argued that the plain text confirms that approach, since “even the most general description cannot refer to features that the thing being described does not have.” And in any event, she continued, concerns that serious state-law offenses would not qualify as aggravated felonies simply because they lacked a federal jurisdictional element were overtaken by the structure of federal immigration law, which provides numerous ways in which serious state offenses can constitute aggravated felonies, including a catch-all for all “crime[s] of violence . . . for which the term of imprisonment [is] at least one year.” Indeed, she explained, “[l]ooking for consistency in the aggravated felony provisions of [federal immigration law] is often a fool’s errand.”
As for the majority’s contextual considerations, Sotomayor continued, they provide “no reason to prefer one reading [of the “described in” language] over the other.” If anything, she continued, they only underscore the difficulty of trying to distinguish between “substantive” and “jurisdictional” elements in matching state crimes to federal ones:
Section 844(i) requires that the property destroyed be “used in interstate . . . commerce.” The Court has held [in Jones v. United States] that “standard, jurisdictional” element demands the property’s “active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce.” As a result, the Court held that a defendant who threw a Molotov cocktail through the window of an owner-occupied residential house could not be guilty under §844(i) because the house was not “active[ly] used” in interstate commerce. Surely, however, a New York prosecutor could have secured a conviction under [the relevant New York arson statute] had the same crime been prosecuted in state, rather than federal, court.
But regardless of who had the better of this argument, the bottom line of Thursday’s ruling is to expand the class of state or foreign convictions that will qualify as “aggravated felonies” under federal immigration law. And while that may be a modest outcome, the more significant takeaway may be the lineup; for only the second time in their seven years serving together on the Court, Sotomayor was joined in dissent by the duo of Thomas and Breyer. And just as in the earlier case – Scialabba v. Cuellar de Osorio – the dispute was over how judges should interpret language in federal immigration law that seems to compel a particular, if somewhat strange, result.
Thus, whereas Thursday’s decision may end up better known for the Justices’ first-ever references to Craigslist and Lonely Planet, the more lasting implications may be the new battle lines it appears to portend over how courts should cut the Gordian knots routinely presented by the text of federal immigration law.